Arizona v. Navajo Nation is one of the more frustrating opinions I've read this term. Not frustrating in the sense that Justice Gorsuch wrote his tenth consecutive opinion favoring Indian tribes. By now, that is to be expected. Rather, I found this decision difficult to follow because Justice Kavanaugh's anemic majority opinion did not address, let alone acknowledge Justice Gorsuch's dissent. Much like in Brackeen, the Court's conservatives are simply ignoring Justice Gorsuch on Indian law. It's like a game of hide-and-seek where the seekers never stop counting. Or maybe, to fit the genre, a game of Cowboys and Indians where the Cowboys go play baseball.
I don't pretend to be an expert in Indian law, so it is difficult for me to balance how strong or weak the opinions are. As a general matter, I am skeptical of any Gorsuch opinion that rules for an Indian tribe or member. McGirt and Brackeen will do that to you. But I am also skeptical of any Justice Kavanaugh opinion that is super short, repeats the same theme over and over and over again, and relegates a dispute about precedent to a footnote. Navajo Nation has all the hallmarks of trying to smooth over unclear/unfavorable precedent.
Without some back-and-forth, I have to venture out on my own to figure what the right answer is. And venture I will.
